Inconvenient News,
       by smintheus

Friday, February 19, 2010

  Is honesty a “known, unambiguous obligation or standard”?

The final Justice Department assessment of the professional conduct of the torture memo authors (PDF) has been dumped released unceremoniously this Friday afternoon. The assessment is not posted, nor is there a press release about it, at the DOJ website.

The draft report(s) by the Office of Professional Responsibility had found John Yoo and Jay Bybee guilty of misconduct – rather remarkably, given that OPR investigations of wrongdoing by Justice Department officials almost always lead nowhere. However, as anticipated (see here), in its final assessment the DOJ softened the draft (OPR) findings to the point that Yoo and Bybee were found only to have exercised “poor judgment”. Absent a finding of misconduct, they will not be disbarred or in Judge Bybee’s case, face impeachment. Indeed it looks like there’ll be no penalty at all for having given the green light to the torture and abuse of prisoners in US custody.

David Margolis, an associate deputy attorney general, is the man who decided to let Yoo and Bybee off with a slap on the wrist. His reasoning? Essentially he argues that “a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney’s conduct. I am unpersuaded that OPR has identified such a standard.”

I’ll have more to say later about this final assessment and the politics behind Margolis’ decision once I’ve digested the whole thing. For now, I’ll simply note that Margolis (who is said to be extremely sensitive to which way the political winds are blowing in DC) is talking through his hat here. The memos generated by Yoo and Bybee are rife with gross inaccuracies and demonstrable falsehoods. Is it not a known and unambiguously accepted standard that attorneys are obligated to be honest and scrupulous in their representations of law and jurisprudence? At a minimum?

To cite but one example, which I reported on here last August, John Yoo falsified what the UN Convention against Torture says in his memo from April 28, 2003. In that memo, Yoo claimed that …

"the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment or punishment] in exigent circumstances, such as a national emergency or war."

Yoo’s memo added no qualifications, no evidence, no citation, and no argument to justify that statement. The statement is absolutely false, as I documented in my post last August. In other words, Yoo lied in order to provide the Bush administration with a back-door justification (“national emergency”) for torture where none exists legally.

Whatever else one may think of the dubious propositions advanced by Yoo in that memo, it could not possibly be any clearer that he has engaged in misconduct in this instance.

Why does David Margolis not recognize honesty and factual accuracy as an unambiguous obligation for Justice Department attorneys?

Update: In his assessment of the OPR report, Margolis does in fact get around to the question of honesty - admitting that professional rules obligate DOJ attorneys to refrain from provinding to a client advice that is knowningly or recklessly false or issued in bad faith. Their legal work also must be competent.

Nevertheless, Margolis goes on to consider and dismiss all the evidence that the OPR report assembled to show that John Yoo's work to justify the torture and abuse of prisoners was incompetent and knowingly or recklessly false or issued in bad faith. It's a tour de force of seeing-no-evil. I simply cannot imagine how any candid investigation of John Yoo's legal output could avoid the conclusion that he knowingly falsified both law and case law in the baddest of faith.

crossposted at

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